It is rare in the UK's recent dealings with FIFA that it has had anything to celebrate. The 2018 World Cup went to Russia, FIFA's then refusal of goal-line technology cost England a goal versus Germany in the 2010 World Cup and even last weekend Chelsea lost in the final of the FIFA World Club Cup. However, at least it can celebrate one "victory" following the Advocate General's ("AG") Opinion on FIFA and UEFA's appeal concerning broadcasting of the FIFA World Cup ("World Cup") and UEFA European Championships ("Euro's").

he AG has advised the Court of Justice of the European Union ("ECJ") to reject FIFA and UEFA's claims that the UK's "listed events" regime place unfair restrictions on them in selling the lucrative broadcast rights to the World Cup and Euro's.European law states "Member States should be able to take measures to ensure wide access by the public to television coverage of national or non-national events of major importance for society". In the UK, this is reflected in our "listed events" regime (https://www.lawinsport.com/blog/snr-denton-blog/item/listed-events-and-free-to-air-tv-have-the-aussies-got-anything-right-that-we-haven-t), which protects certain sporting events including the World Cup, and the Euro's to make sure they are available on free-to-air channels.

This regime prevents FIFA and UEFA from entering potentially more favourable broadcasting deals with pay-TV providers such as Sky. Both FIFA and UEFA agree that matches involving the home nations and matches in the latter stages of the tournament are worthy of protection. However, they argue that the same logic should not apply to all other "lesser" matches in the competition. As a result, FIFA and UEFA are claiming, among other things, that restricting the broadcast of certain whole competitions to free-to-air channels is:

disproportionate and should be restricted to individual matches of national importance; and

an infringement of their rights to property.

However, in his Opinion to the ECJ the AG wrote " if those competitions are considered by Member States to be events of major importance for their society, those Member States may, in order to ensure broad public access, require that they be broadcast on free-to-air television". The AG suggested the Commission should not verify whether events on the Member State's list were actually of major importance. Instead, the Commission should only verify the procedure for drawing up event lists considering the transparency and clarity demands imposed by the legislation. He stated the Commission ought to restrict itself only to the question of whether there has been a "manifest error of assessment".

The AG considered that, by clearly reserving to Member States the right to decide their own list, the EU understood there would be a necessary limit on the freedom to provide services. In doing so, it decided that, where an event had such significance, the public's right to information trumped that of the right owner's freedom to contract with whomever they chose.

The AG also advised there could be no infringement of FIFA or UEFA's right to property. Indeed, English law does not recognise any proprietary rights in a sporting event. FIFA and UEFA's ability to sell broadcasting rights are derived from contractual arrangements and control of access to the stadium rather than any inherent ownership of the event. In addition, the ECJ has already found that sporting events are not intellectual creations and do not contain any proprietary rights that can be infringed.1

The ECJ will make a final ruling in the coming months but it will usually follow the advice it receives from the AG. This Opinion is therefore a major setback for FIFA and UEFA. It is more likely the ECJ decision will provide greater clarity on the framework the Member States should apply when selecting events of major cultural significance.

The ruling will be of particular relevance in the UK with the Government likely to be looking again next year at the listed events regime in the context of its digital strategy review. The ECJ's decision will likely impact on this debate, especially if it gives guidance on how to determine the "importance for their society" qualification.

The current list of events was set in 1998 and so the Government review will also need to consider the new list in the light of the increasingly rapid digitalisation of sports coverage on multiple non-traditional platforms. In the new converged world, where the public has increasing choice and access to sports broadcasting, the concept of "free-to-air" requires adapting to take into account the realities of this new digital era. Decisions over the next 12 months could have a major impact on future of broadcasting of major sporting events in this country. Stay tuned to our blog throughout 2013 for reviews of all the important news.

1 Football Association, Premier League and others C-403/08 and C-429/08 [2011] ECR I-0000

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Alex is a commercial lawyer at Dentons with a particular emphasis on the media and sport sector. Alex has worked on media rights related matters for a number of clients including, the England and Wales Cricket Board and Chelsea Football Club as well on various commercial arrangements in sports such as football, cricket and formula 1.

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